Lake Ontario Waterkeeper comments on Draft Screening Report for the Port Hope Long-Term Low-Level Radioactive Waste Management Project
Our entire submission is available for download here.
Executive Summary
LOW requests the following:
A. That key pieces of information currently missing from the draft screening report be fully canvassed and disclosed; and, B. That the responsible authorities request the Minister to refer the project to a review panel; and, C. That the LLRWMO apply for a certificate of approval for waste management, pursuant to the Ontario Environmental Protection Act.
The reasons for this request are as follows:
1. Critical pieces of information are not contained in the draft screening report. 2. The Port Hope Low Level project is too important to Port Hope residents to conduct without a Review Panel. 3. The Port Hope waste site is a hazardous waste site that requires licensing under the Ontario Environmental Protection Act and is outside the licensing jurisdiction of the CNSC.
Background
The Low-Level Radioactive Waste Management Office (LLRWMO) of Natural Resources Canada presented a Draft Screening Report for the Port Hope Area Low-Level Radioactive Waste Management Project (LLRWMP) in August 2006. This comment is submitted in response to the 30-day comment period granted for the Draft Screening Report. On September 11, 2006 LOW requested an extension of the comment period, and on September 16, 2006 the LLRWMO denied our request. LOW also submitted comments during earlier stages of the environmental assessment process.
At every stage of the process, Lake Ontario Waterkeeper has tried to convey the importance of the Port Hope Area Low-Level Radioactive Waste Management Project: to area residents, to the Lake Ontario watershed, and to environmental justice in Canada. Given the significant number of omissions, vague details, and silent government departments in this draft screening report, LOW is very concerned that we have failed.
In light of this concern, we beg the indulgence of the responsible authorities as we attempt to describe the significance of the Port Hope Project from a grassroots perspective:
Seventy-five years ago, the nuclear industry came to Port Hope. It came in the name of peace & war, technological progress, and later “clean� energy. Since the very earliest days, “low-level� radioactive waste has contaminated parts of the Port Hope community. When waste sites were formally created in the 1940s, they were not equipped with environmental control technologies and, as a result, contributed to the spread of waste throughout the community.
Small-scale construction and development projects also contributed to the spread of contamination. Each post, beam, or pile of dirt moved from a contaminated area to a clean area created a new threat. The slow, unintentional spread of potentially harmful substances created a perverse legacy of pollution in an otherwise ordinary Ontario town. With it came fear: that property values might fall, that public health might be in jeopardy, and that jobs might be lost. Now, after an entire generation has grown up with this fear, there are neighbours who do not speak to each other. There are citizens who are ostracized for raising concerns. There are residents who are afraid to admit where they work.
If you consider everything this community has lost – security, pride, clean air and water – it becomes clear that the Port Hope Project is about much more than simply an engineered facility for waste. The Port Hope Project is about healing a community, both literally and figuratively. No one disputes that mistakes were made in Port Hope in the past. No one disputes that this clean-up program must happen as soon as possible. Now it is time to ask the most important question: “How?� As in, “How will we remove all of the contamination from our yards, parks, and ravines?� And, “How will we dispose of it correctly this time?� And, “How will we ensure that, when we are done, our town will be free from this shadow of contamination forever?� And finally, “How will we be transparent, so that every citizen knows that he or she has been protected?�
Lake Ontario Waterkeeper respectfully submits that the draft screening report does not do this. It fails to reflect the enormity of this undertaking, its uniqueness, and the extent of the problems it is seeking to solve. There are many, many outstanding issues. The public needs more information, more access to decision-makers, and more opportunities to share wisdom and insight than it has currently been granted.
We have a town full of uncontained hazardous waste, a town that has already lost much of its natural heritage and social cohesion. Your role, as responsible authorities, is to ensure that the Port Hope Project achieves and maintains a healthy environment and a healthy economy in this community, for the first time in seventy-five years.
The past is defined by mistakes and losses. This era will be defined by your decisions, now.
Reasons
1. Critical pieces of information are not contained in the draft screening report.
The draft screening report is missing several pieces of information that are essential to deciding how the project should be carried out and whether or not there will be significant environmental effects.
Because of the major procedural issues described in Sections 2 and 3, LOW has not catalogued every omission in great detail. Some of our concerns could be dealt with through an extended public comment period. All of our concerns would be addressed through the review panel and Part V hearing processes. At a minimum, due process is needed to identify, analyze, and resolve every error and omission in the current environmental assessment.
For example:
o Incomplete descriptions of the project's financing: It is impossible to conclude that there will be no significant environmental effects if we do no know whether or not we have committed enough funds to finish the project. The federal government pledged $260-million to the Port Hope Project. It is not clear what portion of these funds has been allocated to the actual clean-up and what are being spent on the study process, paid to municipalities, paid to individuals as compensation, or reserved for communications programs. What happens if the amount of contaminated waste found in the community continues to grow, or if the total cost of the project exceeds $260-million? Furthermore, a significant portion of the waste destined for the long-term storage facility was generated by private companies, some with limited or no ties to the nuclear industry; it is not clear who is financing disposal of this private waste.
o Little information about the nature of the “miscellaneous sites�: It is impossible to conclude that there will be no signficant environmental effects if the sites to be excavated are not identified. The environmental assessment must contain a detailed list of the “miscellaneous sites� and the quantities and qualities of waste they contain. The lack of basic detail about the sites to be cleaned-up undermines the entire purpose of the environmental assessment process.
o The cleanup criteria for water quality are missing: It is impossible to conclude that there will be no significant environmental effects if no criteria for water quality have been established. These criteria were promised in the study report but left out of the draft screening report.
o Final land-use plans are missing: It is impossible to conclude that there will be no significant environmental effects if there is no description of what the final land-uses will be for each and every clean-up location. Will there be remediation of the Port Hope harbour? Will grass be laid and trees planted to prevent erosion near waterways? Will contaminants be “contained in situ� and land-uses restricted?
o Environmental and performance monitoring programs are missing: It is impossible to conclude that environmental effects can be mitigated if monitoring programs and licence conditions have not been determined. The CNSC licence, if required, would oversee only a limited part of the management of this hazardous waste facility. A comprehensive performance and monitoring program must be prepared.
o Decommissioning is not part of the project: It is impossible to conclude that there will be no significant environmental effects if decommissioning has not been considered. If we have no plan to deal with the consolidated waste in the future, then we have no information whatsoever upon which to base our conclusions about long-term effects.
This list represents just a few of the significant details still outstanding in this environmental assessment process.
2. The Port Hope Low Level project is too important to Port Hope residents to conduct without a Review Panel
The nature of the material in question and the gravity of the concern shared by members of the Port Hope community regarding its past, present, and future effects demand a review panel under the Canadian Environmental Assessment Act. A review panel represents an enhanced and independent decision-making process. Indeed, it is the only option under the CEAA that offers the kind of rigorous scrutiny required for a project of this magnitude.
Public participation is critical to a project of this nature, because cleanup criteria cannot be dictated by mathematical calculations alone. In the CEAA Review Panel on “Nuclear Fuel Waste Management and Disposal Concept� the Canadian Environmental Assessment Agency acknowledged that determining what level of safety and acceptability could be used in the context of nuclear waste disposal could not be rationalized. Instead, determining acceptability and risk requires considering the way communities will be impacted by waste disposal including “the equity of the distribution of risks and benefits, its net benefit to society and the extent to which it incorporated participatory decision-making.�
It is clear from the process thus far that a screening environmental assessment cannot provide the level of study, scrutiny, and participation the Port Hope Project requries. In light of significant public concern, the potential for environmental impacts, existing environmental impacts, and the serious consequences of poor planning, this project should be referred to a review panel.
3. The Port Hope waste site is a hazardous waste site that requires licensing under the Ontario Environmental Protection Act and is outside the licensing jurisdiction of the CNSC
Waterkeeper has raised questions regarding federal/provincial jurisdiction from the beginning of this environmental assessment. In 2002, LOW corresponded with the Ontario Ministry of the Environment, and asked whether the Ontario Environmental Assessment Act (EAA) and the Ontario Environmental Protection Act (EPA) would be applied to the LLRWMP in Port Hope. The Ontario Ministry of the Environment replied that the Ontario EAA does not apply, but gave no answer to our inquiry about the EPA. The LLRWMO documents related to the Federal assessment, while they have reiterated that the Ontario EAA does not apply, have acknowledged that some Provincial environmental laws may apply.
Here, we provide a thorough analysis of the jurisdictional issues, which raises a number of serious questions regarding the current division of responsibilities between the federal and provincial governments.
a) Federal jurisdiction over nuclear materials is not plenary; it is limited to those aspects of nuclear waste that are incidental to the production of nuclear energy and nuclear substances or which are of clear national concern.
Waste management is traditionally a Provincial concern. However, the Federal Parliament has jurisdiction over the production of nuclear energy by virtue of its power over declared works and undertakings in s.92(10) of the Constitution Act, 1867 . The Nuclear Energy Act designates works for the production of nuclear energy and nuclear substances as works and undertakings.
18. All works and undertakings constructed (a) for the production, use and application of nuclear energy, (b) for research or investigation with respect to nuclear energy, and (c) for the production, refining or treatment of nuclear substances, are, and each of them is declared to be, works or a work for the general advantage of Canada.
Facilities for the management of nuclear waste are not works or undertakings for the purposes of s.92(10) of the Constitution Act, 1867 unless they have been declared to be Federal works or undertakings. The management of historic nuclear waste by Natural Resources Canada in the Port Hope LLRWMP has no relationship to any Federal work of “the production� of nuclear energy and is therefore not incidental to the Federal power over works for nuclear energy production. Federal bodies must rely exclusively on the Federal power over peace, order and good government to participate in radioactive waste management. This power is residual and relies exclusively on the “national concern� test developed by the Supreme Court of Canada in Crown Zellerbach . To meet the national concern test, a subject matter must be sufficiently distinct from matters of provincial jurisdiction, and have a national dimension. Only the aspect of nuclear waste management that retains this distinction and national importance is under Federal jurisdiction.
Waste management is a Provincial matter because it falls within areas of provincial jurisdiction such as property and civil rights, matters of a local and private nature and municipal government. Hazardous waste management is a property and civil rights concern because it directly affects potential future uses of property and liability of property owners in or around waste management sites. It is a matter of a local nature, because in the case of authorizing waste management facilities and regulating their safety, it is the safety, health and property of the nearby local residents that is at stake.
As a matter primarily concerned with property and civil rights and matters of a local nature, the management of hazardous waste in waste disposal facilities is necessarily excluded from areas of national concern under the power for peace, order and good government. In the case of low-level radioactive waste, there must be some aspect of the waste that renders it divisible and distinguishable from Provincial jurisdiction over waste management for any Federal jurisdiction to exist.
The Port Hope Low-Level Radioactive waste management project, although it concerns radioactive materials, is not divisible from Provincial jurisdiction over the management of hazardous waste. Radioactive waste is hazardous waste under the Ontario EPA. Even if it were not Provincial hazardous waste, the radioactive waste itself is impossible to separate from other hazardous wastes, such as PCBs and arsenic, the management of which is clearly subject to Provincial jurisdiction under the EPA.
The proponent has never asserted that there are any international or national implications to the Port Hope radioactive waste management project that render it impossible to regulate at a local level. There is therefore no evidence pointing to any basis for a plenary Federal jurisdiction over the project, such that it could be exempt from the EPA.
Even if the Port Hope project does have a limited Federal aspect, in that it might touch on some matters such as fisheries, or relate in some way to the production of nuclear energy, it is in these aspects alone that there is Federal jurisdiction to license or regulate the project. The property and civil rights and human health and safety and local implications of the waste management project are exclusive Provincial jurisdiction.
This would be so even if the waste management project itself were declared to be a Federal undertaking. In Ontario v. Canadian Pacific Ltd. the Ontario Court of Appeal confirmed that the Ontario EPA applies to Federal works and undertakings.
b) There is no authority for exclusive licensing of the Port Hope Project under any Federal Act
The jurisdiction of the Canadian Nuclear Safety Commission (CNSC) is limited to those powers granted in the Nuclear Safety and Control Act. The power to regulate and license nuclear waste facilities must be included in the legislation for it to be allowed.
Section 26 of the Nuclear Safety and Control Act provides that the CNSC may licence the storage and disposal of a nuclear substance, or the preparation of a site for a nuclear facility. However s.19 of the General Nuclear Safety and Control Regulations limits the jurisdiction of the CNSC to the licensing of waste management, storage and disposal facilities “at which the resident inventory of radioactive nuclear substances contained in the waste is 1015 Bq or more.� This requires that the waste in question be more than 1000 TBq before the CNSC may license its storage or disposal. CNSC licensing jurisdiction is therefore identical to the Federal jurisdiction over hazardous wastes found under s.32 of the Comprehensive Study List Regulations pursuant to the Canadian Environmental Assessment Act. The proponent has alleged on several occasions that the waste involved in the Port Hope Low-Level Radioactive Waste project is well under 100 TBq. As a consequence, when a radioactive waste facility is not subject to a comprehensive study and review panel on that basis under the CEAA it also ceases to be licensable by the CNSC.
Historic low-level hazardous radioactive waste contained in the remediation sites in Port Hope have a radioactivity of under 100 TBq and so do not meet either the statutory or constitutional requirements for full CNSC control over the waste storage facility. The CNSC is therefore not an appropriate RA for this project.
c) The project requires a permit and a hearing under Part V the Ontario Environmental Protection Act.
Part V of the Ontario EPA regulates several aspects of waste disposal and management in Ontario. This act applies equally to all waste sites in the entire Province of Ontario, and reflects the local interests and property and civil rights of all Ontarians. Section 27 requires a certificate of approval for the operation, establishment, alteration or extension of a waste system or disposal site.
27. (1) No person shall use, operate, establish, alter, enlarge or extend, (a) a waste management system; or (b) a waste disposal site, unless a certificate of approval or provisional certificate of approval therefor has been issued by the Director and except in accordance with any conditions set out in such certificate.
The Port Hope Low-Level LLRWMP clearly meets the definition of a “waste management system� and is a “waste disposal site� under s.27. Therefore a Provincial certificate of approval is required. Nothing about s.27 entrenches upon any Federal interest in the production of nuclear energy. The section is a law of general application directed at human health, the environment and protecting property of local residents. The existing license for the Welcome WMF requires it to comply with all Provincial laws of general application.
Radioactive waste is a designated hazardous waste under EPA Regulation 347, as is arsenic, another clearly hazardous waste found in every remediation site of the Port Hope LLRWMP. The definition of radioactive hazardous waste in Regulation 347 is as follows:
radioactive waste, except radioisotope wastes disposed of in a landfilling site in accordance with the written instructions of the Canadian Nuclear Safety Commission,
While the Port Hope Low Level LLRWMP is probably within the definition of a “landfilling site� under Regulation 347 it is not “disposed of� nor is it possible for it to be disposed of with the permission of the CNSC, since the project is far less than 1000 TBq. As waste with a radioactivity of less than 1000 TBq, it is clearly and unequivicoally a matter of a local nature, within the property and civil rights jurisdiction of the Province. Nowhere in the project description is the LTWMF facility described as a landfill disposal site, but rather it is described as “storage� of the radioactive material for a period of 500 years. The exclusion in Regulation 347 does not refer to “storage� or “handling� of waste, but only to disposal. This is clear evidence that the exclusion was intended to be limited to disposal.
Even if the project could meet the exclusion criteria under Regulation 347 for radioactive waste, the sites in question are contaminated with other substances that are Provincial hazardous wastes. PCBs and asrsenic are hazardous wastes that are listed in Regulation 347, as is uranium itself, a widespread contaminant at the Port Hope remediation sites. Mixed wastes, including radioactive wastes are clearly within the definition of “radioactive waste� in Regulation 347 and so are subject to the EPA notwithstanding the involvement of Natural Resources Canada. To be excluded from the Ontario EPA, an actual exemption from the Act is required.
The consequence of inclusion in the EPA scheme is that under Part V of the EPA, a tribunal hearing is mandatory before the waste management facility can be approved under s.27. As a hazardous waste site, containing arsenic, PCBs, and uranium the site is subject to the public processes provided for in s. 30(1) of the Ontario EPA.
d) There are solid policy reasons for proceeding with a full hearing of the issue at the next stage of the process
A Part V hearing under the Ontario EPA would be very beneficial to the Port Hope LLRWMP. While a Review Panel could enhance the scope and methods of the cleanup, a Part V hearing would relate to the waste site itself. A Part V hearing would greatly enhance participatory decision-making and allow the public and the Provincial government to engage in an independent review of the project. The Provincial Ministry of the Environment has a well-developed body of expertise relating to the creation and approval of hazardous waste sites including hydrogeological, engineering and other expertise which is essential to the process. This can be enhanced by full public participation at an Environmental Review Tribunal hearing. CEAA determined that
Although public acceptance might be demonstrated at the conceptual stage, it would have to be demonstrated at the site-and design-specific stages before the concept could be implemented. At those stages, acceptability would be determined from the point of view of the general public, governments and the regulator, in addition to the potential host and other directly affected communities.
The CEAA acceptibility criteria developed by the Review Panel requires an opportunity for public participation at the design-specific stage. This is precisesly the stage where EPA approval, and an open, public, Part V hearing will be initiated. So far LOW submits that the LLRWMO has only addressed public acceptance at a conceptual stage.
The Canadian Environmental Assessment Agency also noted that to be acceptable, a concept for managing radioactive wastes must not only have broad public support but be advanced by a stable and trustworthy proponent and overseen by a trustworthy regulator.
The LLRWMO is probably well-aware that there is widespread disatisfaction with the CNSC licensing process and procedural fairness at hearings. These include cutting-off members of the public making submissions after ten minutes, the possibility of accidental forefiting of procedural rights, the requirement of making detailed, written submissions 30 days in advance of the hearing, 17-hour long hearings, the lack of opportunities to respond and ask questions, the failure to require evidence to be given under oath, no right of appeal, the widespread lobbying of the CNSC members by industry, the absence of cost-awards, and finally the holding of hearings outside of the host-community in Ottawa. As the CNSC also lacks the jurisdiction to license sites of under 1000 TBq, and in particular to direct the proponent and owner to appropriately dispose of historic wastes this is the wrong process for authorizing the site and ensuring safety.
In contrast, Part V hearings under the Ontario EPA have clear and effective procedures for public participation before the Environmental Review Tribunal. The ERT rules require the hearing to be located as close as possible to the site that is subject to the proceeding. Witnesses are required to respond to reasonable requests for answers, and full disclosure is given to all parties. A person may become a party to the hearing where their interests may be directly and substantially affected by the hearing or its result. Once a party, members of the public can cross-examine witnesses, make submissions and recieve documents and claim costs. Members of the public with less connection may also participate.
Approval under the Ontario EPA is absolutely necessary to acheive acceptabilty to the standards and criteria developed by the Canadian Environmental Assessment Agency, even if a Review Panel is conducted under CEEA to ensure that the actual cleanup is as comprehensive as possible. Ontario EPA approval and a Part V hearing is absolutely necessary to meet the objectives in Federal policy for nuclear waste developed by CEEA.
As the Draft Screening Report aknowledges, in the past, solutions to the radioactive waste problems in Port Hope have met with disasterous public opposition, leaving the remediation of contaminated sites in Port Hope unaddressed. Proper involvement of the Province will facilitate an enhanced degree of public involvement and therefore reduce the chance of the LLWMP meeting the same fate.
Approval in a certificate of approval under the Ontario EPA also represents enhanced processes for the future. Unlike a CNSC licence, a Provincial certificate of approval is an enforceable, accessible, clear and specific standard for ensuring that the site is properly managed. The certificate, once approved is fully public, and any changes to the approval must be made public on the Environmental Bill of Rights registry.
Conclusion
If we have learned only one thing from Port Hope's experience, it is this: small amounts of contaminants managed poorly will spread. Before long, we will see widespread contamination, environmental degradation, human health concerns, and social and economic tension. The first time around, the nuclear industry and all levels of government suggested that it was a mistake, that “the need to exercise care in the management of process wastes was not as recognized as it is today.� The second time around, we would have no such defence.
For this reason, and the reasons described above, Lake Ontario Waterkeeper respectfully requests the following:
A. That key pieces of information currently missing from the draft screening report be fully canvassed and disclosed; and, B. That the responsible authorities request the Minister to refer the project to a review panel; and, C. That the LLRWMO apply for a certificate of approval for waste management, pursuant to the Ontario Environmental Protection Act.
Our entire submission is available for download here.